TMI Blog2011 (6) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... that the tax effect in the present appeal is below the prescribed limit, therefore, the appeal of the revenue deserves to be dismissed on this count itself by further submitting that the tax effect is ₹ 2,52,450/-, therefore, no appeal can be filed before the tribunal which is having the tax effect less than ₹ 3 lacs. This factual matrix was fairly consented by the learned Sr. DR but submitted that the circular of CBDT is effective from a particular date, therefore, the submission of the assessee is not tenable. In reply, the Ld. Counsel for assessee contended that identically the Hon ble jurisdictional High Court has held that it is applicable to the appeals which are pending before the Tribunal and placed reliance upon the decision in CIT v. Ashok Kumar Manibhai Patel Company (2009) 317 ITR 386 (MP), ITO vs. M/s Laxmi Jewels Private Limited (ITA No. 2165/Mum/2010). 3. We have considered the rival submissions and perused the material available on file. Undisputedly, the tax effect in the present appeal is below the prescribed monetary limit in filing the appeal before the Tribunal. Therefore, we are reproducing hereunder the decision of the Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed. Our view is supported by the decision of the Tribunal in Himanshu Flour Mills (ITA No.506/Ind/2009, order dated 26.5.2010). The relevant portion of the same is reproduced hereunder: This appeal is by the revenue against the order of the learned CIT(A) dated 26.8.2009 on the ground that the learned Commissioner of Income Tax (Appeals) was not justified in deleting the addition of ₹ 5,46,831/- made by the Assessing Officer on account of disallowance of depreciation on fixed assets and also in directing the Assessing Officer to allow carry forward of brought forward losses of earlier years. 2. During hearing of this appeal, we have heard the learned counsels from both the sides and considered the arguments advanced by them. At the outset, the ld. Counsel for the assessee raised a preliminary objection that since the tax effect is below the prescribed monetary limit, therefore, the department is not permitted to file this appeal and the same deserves to be dismissed on this short ground itself. However, the learned Sr. DR fairly agreed that the tax effect is below prescribed monetary limit. 3. We have considered the rival submissions of ld. representatives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year 2002-03. The revenue has not adduced any evidence controverting the factual finding mentioned in the impugned order, therefore, the disallowance is desirable in the impugned appeal. Even otherwise on the tax effect this appeal of the revenue is liable to be dismissed. This view finds support from the decision of the Tribunal in the case of R.K. Hotels (ITA No.383/Ind/09). The relevant portion of the order is reproduced hereunder :- This appeal is by the revenue against the order of ld. CIT-(A)-II, Bhopal, dated 31.3.2009 for the AY 2005-06 on the ground that the ld. first appellate authority erred in deleting the addition of 6,37,206/- made by the AO by applying the provisions of sec. 154(3) on account of incorrectness and incompleteness of books of account. . 2. During hearing of the appeal, we have heard Smt. Aparna Karan, ld. Sr. DR and Shri H.P. Verma along with Shri Ashish Goyal, Ld. Counsel for assessee. At the outset, it was pointed out that there is typographical error in mentioning the figure of ₹ 6,37,206/- in the ground of appeal as the correct figure is ₹ 3,94,732/-. The assertion of the assessee was consented to be correct by the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n raised on behalf of the revenue is that in coming to a particular conclusion, no basis has been adduced by the learned first appellate authority and it was rightly disallowed by the Assessing Officer in the absence of proof furnished by the assessee. 5. I have considered the rival submissions and perused the material available on record. The stand of the revenue is that proof of last years losses was not furnished by the assessee consequently these are not allowable whereas before the learned first appellate authority there is a factual finding that in all previous years returns were duly filed by the assessee and the same were available on record of the Assessing Officer. In the impugned order the learned first appellate authority has directed the Assessing Officer to allow carry forward of brought forward losses of earlier years which were not set off after verification of records of earlier years. Even otherwise, it is a case of assessed loss which has not been set off. Consequently, we are in agreement that in view of the provisions of section 72 it should be allowed. Consequently, there is no grievance to the revenue since it has been remanded back to the file of the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of sec. 275(1)(a) of the Act. Since the appeal of the assessee was decided by the ld. CIT(A) vide order dated 4.11.2004, consequently, the penalty proceedings were supposed to be disposed of by 31.3.2006 whereas the same was decided vide order dated 22.4.2009. In view of this fact, the order was rightly quashed, consequently, we find no infirmity in the stand of the ld. CIT(A). The same is upheld. Order pronounced in the open Court in the presence of ld. representatives of both the sides at the conclusion of the hearing on 31.5.2011. Identically the Bench in the case of Vinod Bansal, ITA No. 275/Ind/2010 vide order dated 22.6.2011 dismissed the appeal of the revenue on the issue of tax effect. The Hon ble jurisdictional High Court in the case of CIT v. Ashok Kumar Manibhai Company (2009) 317 ITR 386 held as under :- This Court can very well take judicial notice of the fact that by passage of time money value has gone down, the cost of litigation expenses has gone up, the assessee on the file of the Department have been increased consequently, the burden on the Department has also increased to a tremendous extent. The corridors of the superior courts are ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 11.8.2008 issued u/s 131 of the Act to Shri Ravindra Kumar Jain, copy of account for the period from 1.4.2005 to 31.3.2006, certificate of membership for the years 2005 to 2007 from Vidisha Vyapar Mahasangh and the affidavit of the assessee dated 18.7.2008 (sworn on 19.7.2008). A plea was also raised that the assessee is having agricultural income and read over the contents of the affidavit before us. 6. Rival contentions have been considered and record perused. The addition has been made by the Assessing Officer u/s 68 of the Act. There is no dispute to the well settled proposition of law that in case of cash credit, not only identity but genuineness of the transaction and credit worthiness of loan creditor is also required to be proved by the assessee. In the instant case before us, the assessee has taken loan of ₹ 1 lac from Shri Ravindra Jain son of Shri Guruprasad Jain who was running a shop of electric equipments. He was also carrying out repairing work in the said shop. Apart from the income from this shop, the assessee was having agricultural land admeasuring 10 bighas in village Manupura, Siyasi Vikas Khand, Vidisha, which is totally irrigated. To prove the ow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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